Temporary change to self-cert rules – what does it mean for employers?
21 December 2021
On Friday 17 December the Government made a temporary change to the rules on self-certification and fit notes. You may have missed it, as it has gone somewhat under the radar for most people so far. We have a look at what has changed, and what this means in practice for employers.
What has changed and why?
The new rules mean that for Statutory Sick Pay (SSP) purposes, instead of an employee being able to self-certify for the first 7 days of sickness absence, they are now able to self-certify their absence for 28 days.
As a result, in order to pay SSP an employer cannot require an employee to provide a ‘fit note’ (or medical evidence of incapacity) for the first 28 days of absence.
The idea behind the changes is to free up GPs’ time in order to allow them to focus on the Covid vaccination booster programme.
What dates are covered by the change?
The new rules came into force on 17 December and they are stated to stay in force until 26 January 2022.
Importantly, it is not only absences which started on or after 17 December which are covered. The regulations specifically state that they will also apply to periods of incapacity which started prior to 17 December but which hadn’t lasted more than 7 days at that stage.
It is also worth noting that the regulations apply to absences which start on 26 January 2022, so someone who starts a long period of absence on that date is covered by these rules and would not have to provide a fit note until 23 February 2022.
How does this affect employers?
Most employers will have terms in employees’ contracts (and/or wording in policies) regarding notification of absence. In our experience, virtually all of these will require employees to provide medical evidence of absence after 7 days.
The effect of the new temporary rules on your organisation may depend on what kind of sick pay arrangements you have in place.
If when your employees are ill they are only entitled to SSP, then whatever your contracts or policies say, you will not be able to insist upon medical evidence after 7 days in order for your staff to be entitled to be paid SSP.
If you pay any sick pay over and above SSP, then for the SSP element you will have to follow the new rules, but strictly speaking you are entitled to apply your normal contractual rules for anything you pay over and above SSP. Therefore you could potentially still insist upon medical evidence after 7 days as you normally would. It may depend on the wording, as many company sick pay schemes are closely linked to the payment of SSP – if in doubt, it is best to take advice.
However, even if you are still entitled to require medical evidence after 7 days, because the change in the rules has been introduced because of the pressure on GPs, you may need to take a pragmatic view as to what you expect employees to provide. Your view may depend on the particular type of absence involved – in particularly tricky situations, if necessary you may be able to seek independent medical advice.
If you are dealing with a problem involving sickness absence, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].